Petitions to watch | Conference of 11.23.10

Posted Mon, November 22nd, 2010 2:02 pm by Christa Culver

This edition of "Petitions to watch" features cases up for consideration at the Justices' November 23 conference. These are petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.

Smith v. United States

Docket: 10-18Issue(s): Whether, when a trial judgeâ€™s restriction on the cross-examination of a prosecution witness is challenged on appeal as a violation of the Confrontation Clause, the proper standard of review is de novo or abuse of discretion.

Johnson v. Estate of Terry Gee, Jr.

Docket: 10-86Issue(s): Whether a jail official who defers to treatment decisions of medical professionals working within the jail facility can still be considered to be deliberately indifferent to serious medical needs of an inmate in violation of the Fourteenth Amendment.

Certiorari stage documents:

Webster v. United States

Docket: 10-150Issue(s): Whether the Supreme Court can review a decision by a court of appeals that it lacks jurisdiction to review a federal prisonerâ€™s motion based on newly discovered evidence that the prisoner is mentally retarded and therefore constitutionally ineligible for execution, even if that evidence does not negate the prisonerâ€™s guilt; whether, if AEDPA precludes a successive habeas petition in such a scenario, it is unconstitutional.

Certiorari stage documents:

Cook County, Illinois v. Thomas

Docket: 10-180Issue(s): (1) Whether the lower court properly held that the issuance of a "no duplication of damages" instruction to the jury in a Section 1983 case cures any error resulting from incorrect adjoining instructions that invited the jury to assess damages "by defendant" and "by claim" and to decide the legal question of joint liability; and (2) whether the adjudication of constitutional tort claims against multiple defendants for a single, indivisible injury violates either the law of damages in Section 1983 actions or the defendantâ€™s Seventh Amendment right to a fair trial.

Docket: 10-238Issue(s): (1) Whether the First Amendment forbids states from providing additional government subsidies to publicly financed candidates that are triggered by independent expenditure groups' speech against such candidates; and (2) whether the First Amendment forbids states from providing additional government subsidies to publicly financed candidates that are triggered by the fundraising or expenditures by these candidates' privately financed opponents.

Docket: 10-239Issue(s): (1) Whether Arizona's matching funds trigger, which provides publicly financed candidates with additional subsidies that are triggered by independent expenditures or by the raising and spending of money by privately financed candidates and their supporters, violates the First and Fourteenth Amendments; and (2) whether the Arizona law violates the First and Fourteenth Amendments by regulating campaign financing to equalize resources among competing candidates and interest groups, rather than advancing a compelling state interest in the least restrictive manner.

Docket: 10-277Issue(s): (1) Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2) and, if so, under what circumstances; and (2) whether the class certification ordered under rule 23(b)(2) was consistent with rule 23(a).

Docket: 10-283Issue(s): Whether Medicaid recipients and providers may maintain a cause of action under the Supremacy Clause to enforce § 1396a(a)(30)(A) by asserting that the provision preempts a state law reducing reimbursement rates.

Certiorari stage documents:

Hall v. Ward

Docket: 10-288Issue(s): (1) Whether the Eleventh Circuit misapplied 28 U.S.C. Â§ 2254(e)(1) by failing to give any deference to the state habeas court's factual findings on a habeas petitioner's juror/bailiff misconduct claim; and (2) whether the Eleventh Circuit's finding of prejudice conflicts with Supreme Court precedent insofar as it found that the habeas petitioner failed to establish that the trial court did not answer any question posed by the jury, and when it disregarded the factual findings of the state habeas court that any information provided to the jury was not reversible error; and (3) whether the Eleventh Circuit's decision, which relied on evidence that was not admitted to assess prejudice and harm, conflicts with Supreme Court and circuit precedent.

Certiorari stage documents:

Note: Goldstein, Howe & Russell represent 3M Company et al. as amici curiae in support of respondents.Docket: 10-290Issue(s): Whether the invalidity defense provided for in the Patent Act, 35 U.S.C. Â§ 282, must be proved by clear and convincing evidence.

Tiffany (NJ) Inc. v. eBay

Docket: 10-300Issue(s): Whether, under the doctrine of contributory trademark infringement, a defendant can be held liable for operating a marketplace that it knows is used to sell substantial quantities of goods that infringe a plaintiff's trademark, even if it does not know that particular goods are infringing.

Dunn v. Louisiana

Docket: 10-386Issue(s): Whether a court's modification of the three-step Batson v. Kentucky analysis, requiring the defense to prove that its strikes were not motivated by race, while simultaneously requiring it to prove that the state's strikes were motivated by race, violates the Sixth and Fourteenth Amendments.

Certiorari stage documents:

Guevara v. Republic of Peru

Docket: 10-389Issue(s): Whether the "direct effect" clause of the commercial activity exception to the Foreign Sovereign Immunities Act, 28 U.S.C. Â§ 1605(a)(2), requires evidence that a "legally significant act" occurred within the United States to vest U.S. courts with jurisdiction over a foreign sovereign.

Certiorari stage documents:

Bryant v. Media Right Productions, Inc.

Docket: 10-415Issue(s): Whether statutory damages against a copyright infringer who makes an unauthorized digital copy of a music album, then offers individual songs from the album for sale or distribution on the Internet, are calculated on a per-album or per-song basis.

Certiorari stage documents:

Werner v. Peak Alarm Company, Inc.

Docket: 10-430Issue(s): (1) Whether a police officer lacks probable cause to momentarily detain a person who subjectively believes that he did not commit any crime and, if so, whether the office is entitled to qualified immunity; and (2) whether the Utah Supreme Court erred when it failed to analyze whether the police officers could have reasonably believed that probable cause existed under the circumstances.

Certiorari stage documents:

DISCLOSURE: Akin Gump and Howe & Russell represent one of the parties in the case below; the case is listed here without regard to its chances of being granted.

Bannister v. Illinois

Note: Akin Gump and Howe & Russell represent the petitioner in this case.Docket: 09-1576Issue(s): Whether the prosecution's presentation of testimony at trial subject to a consistency provision in a plea agreement - that is, a provision binding the witness to testify consistently with prior statements made to the police or prosecutors while not under oath - contravenes the Due Process Clause.

The following petitions have been re-listed for the conference of November 23. If any other paid petitions are re-distributed for this conference, we will add them below as soon as their re-distribution is noted on the docket.

Beer v. United States

Docket: 09-1395Issue(s): Whether the Compensation Clause of Article III prevents Congress from withholding the future judicial salary adjustments established by the Ethics Reform Act of 1989.

Alderman v. United States

Docket: 09-1555Issue(s): Whether Scarborough v. United States (1977) recognizes a distinct Commerce Clause authority, beyond the three categories recognized in United States v. Lopez (1995), United States v. Morrison (2000), and Gonzales v. Raich (2005), such that a federal statute which â€œcannot be justified as a regulation of the channels of commerce, as a protection of the instrumentalities of commerce, or as a regulation of intrastate activity that substantially affects interstate commerce,â€ may be sustained based on a â€œminimal nexusâ€ between the activity regulated and interstate commerce.

Certiorari stage documents:

Allen v. Lawhorn

Docket: 10-24Issue(s): Whether a state courtâ€™s determination that trial counselâ€™s waiver of a penalty-phase closing argument did not prejudice the defendant is â€œcontrary toâ€ Supreme Court precedent.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.